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Our justice system has failed to protect the very principles of liberty and equality it was tasked to defend and become a willing participant in the State oppression it was supposed to prevent. Reforming it requires us to revisit what we’ve previously held sacrosanct, says Saswat Pattanayak. (Kindle Magazine)

“I request this House to adopt the same conciliatory attitude to all political minorities and to adopt the same principles as have been adopted by the Soviet Union…I propose my amendment and request Dr. Ambedkar to accept it—That in the Preamble for the words ‘We, the People of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic’, the words ‘We The people of India, having solemnly resolved to constitute India into a union of Indian Socialistic Republics to be called U.I.S.R. on the lines of U.S.S.R.’ be substituted.”

—Amendment proposed by Maulana Hasrat Mohani, 17 October 1949

Maulana Mohani’s visions were threefold: “Our Constitution must be federal, it must be centrifugal, and the constituent States or Republics should willingly hand over certain central powers to the Centre”. He was highly critical of the draft under consideration and minced no words: “We should take our minorities into our confidence. Instead of doing that, you are going to outcaste them altogether. You are passing anything you like, without the slightest consideration for the interests of even your political minorities.”

The Constituent Assembly of India had quite predictably negatived Maulana Mohani’s proposed amendment. The feelings were reciprocal—Mohani, the man who symbolised religious harmony and coined the phrase “Inquilab Zindabaad” also remained the only voice of dissent in the Assembly and refused to go along with the finally adopted Constitution. His desire for a free voluntary democratic Indian Union of sovereign units never materialised.

Almost seven decades have passed since, and the sole dissenter Maulana Mohani has been vindicated. India has failed on both grounds: our states are constantly at odds with the Centre, and our political minorities are routinely persecuted. Both social justice and individual liberties are duly neglected and travesty has become synonymous with justice.

Social (in)Justice

India’s most devastating failure to tackle social justice started only a year after independence was gained. The Hyderabad massacre of 1948—the deaths of around 40,000 people, mostly Muslims killed by Hindu mobs—was well documented but remained suppressed for decades and no justice was rendered. Two decades later in 1969, the Muslim community was again targeted, this time in Gujarat where Hindu nationalists killed hundreds of Muslims and destroyed nearly 40 mosques and 50 dargahs. Exactly two decades later, Bihar (Bhagalpur) witnessed the worst communal violence until that period, resulting in over 1,000 deaths (900 of them Muslims) and the displacement of over 50,000 people. The Moradabad riots of 1980, the Nellie massacre of 1983, the anti-Sikh riots of 1984, the anti-Muslim Bombay riots of 1992–93 and the 2002 Gujarat riots together have resulted in innumerable deaths and massive distrust among minority communities. Add to these the recent Muzaffarnagar riots, the plights of Northeast and Kashmir and we have a region fragmented into different imaginary and competing republics, bound by the law of the land, but not by its spirit.
What can explain the dismissive manner in which the accusations of over a hundred “political” rapes in Kunan Poshpora (among many others in Kashmir) have been handled? What about the justice in caste-based violence resulting in the rape of Dalit women in India (statistically, 21 rapes every week)? So absurdly absent has judicial intervention been that people not only have “taken the law unto their own hands”, but private militias have been established to oppress the Dalits. As a result, the dispossessed are either too often casually disregarded as willful participants in the violence, or are publicly used as case studies carrying Maoist aspirations.

From vilifying insecure communities and terrorising the marginalised, to carrying out broad daylight romanticised “encounters”, the Indian justice system has stoically overlooked communal clashes, rendered selective justice, oppressed political minorities, ignored indigenous peoples and fostered hegemonic nation-building excesses. In the latest instance, the Hashimpura massacre has turned out to be a textbook example of injustice. Even as the police and the military orchestrated the murder of 42 innocent Muslim youth, no one has been found to be guilty. Nearly three decades have passed, and yet not a single member from the military could be brought to the trial for investigational purpose. From entertaining charges of sedition against Arundhati Roy and Geelani, to actually declaring Dr. Binayak Sen guilty, the judicial system is notoriously indifferent to heinous crimes of hateful nature, while it promptly penalises conscientious dissenting citizens who express unpopular political opinions. Even as the sacrosanct wings of democracy in the form of executive-legislative-judiciary-military have long ceased implementing laws that can guarantee a life of dignity for all the citizens of India without discrimination, they have been acutely enthusiastic about reminding people of how serious a charge of “sedition” can be—a remnant of a cruel colonial legacy that has been neatly preserved.

Individual Liberty

Like Maulana Mohani, there was another unsung member of the Constituent Assembly who had predicted the approaching disasters: Mahavir Tyagi. While Mohani was concerned that in our anticommunist quest, we were ignoring an emancipatory USSR Constitution, while heavily borrowing from colonial legacies of oppressive Constitutions of the imperialist world, and that, by doing so, we were facilitating prospects for dangerous communal violence in the coming years, Tyagi was equally emphatic in rejecting the proposals of the Drafting Committee that had introduced the clause of “Preventive Detention”, which curtailed basic individual liberties and in turn made the judiciary system a draconic one.
“What relevancy is there for a detention clause in the Constitution which is meant to guarantee fundamental rights to the citizens? I am afraid the introduction here of a clause of this kind changes the chapter of fundamental rights into a penal code worse than the Defence of India Rules of the old government. I have suffered under the Defence of India Rules long detention“. Tyagi went one step further and proposed that a truly emancipated people must possess the capacity to overthrow a government that acts destructively against the rights of the people: “I would ask Dr. Ambedkar and the Drafting Committee if they are also prepared to arm the people also with the power to overthrow a government which works destructively against the fundamental rights which they have granted to them. Surely the people have got the right to overthrow, abolish or alter such a government and to constitute another government which they think would be more likely to effect their safety and happiness.”

It was not a matter of sheer coincidence that both the divide-and-rule policies resulting in communal violence and curtailment of liberty by means of detention without trial were gifts from British colonialism. R. Palme Dutt cited in India Today (1940) the official policy of the British Raj: “Our endeavour should be to uphold in full force the (for us fortunate) separation which exists between the different religions and races, not to endeavour to amalgamate them. Divide et impera should be the principle of Indian government.”

And yet, despite having an anti-colonial spirit at the forefront of freedom struggle in India, we heavily retained the colonial judicial chapters. Ironically, the British have themselves completely abolished sedition as an offence, but India has zealously guarded the provision, which reads: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law shall be punished with im­prisonment for life, to which fine may be added”.

Let alone entertaining Tyagi’s demands for rights to the citizens to oppose reactionary governments, the Indian injustice system is rife with criminalising citizens without providing them with basic safeguards. Nearly 70 percent of the prison population in India comprises citizens who haven’t been tried (pre-trial detainees or remand prisoners), even as the occupancy level in the prison system is at 118.4 percent. Monthly pending cases in just the Supreme Court amounts to 61,300 (February, 2015). The number of pending cases in the High Courts is 44.5 lakh and in the lower judiciary, the number is 2.6 crore.

Judicial Activism

Even as the pending cases and prison system are depressing indicators, the enthusiasm to encourage judicial activism is a parallel development that is founded upon utter hopelessness. If democracy is meant to reflect the will of the people, then judicial activism/overreach is in reality a legitimate tool to undermine that will. There is no doubt that public interest litigations have done a world of good and that the Supreme Court of India has enormously improved the country’s state of affairs, but at the same time, by essentially violating the separation of powers principle, the courts are setting wrong precedents. Most notably, the manner in which the Chief Justice of India and four other judges get to select and appoint judges clearly sends alarming signals.
Most of the judicial activism is made possible owing to interpretations of our Constitution, which are perfectly legal (naturally), but it will not be a stretch to visualise the courts as the new bureaucracy. Not to mention, considering the social locations of the powers to be within the judiciary, a tad elitist (again, naturally so).

As the recent “Nirbhaya” documentary episode demonstrated, not only was the ban itself rightfully controversial and therefore ignited discussions, but the media interviews with the defense attorneys displayed almost a trend of judicial vigilantism. Whatever be the nature of its content and regardless of how useful to or judgmental of the feminist movements it is, the excuse that the telecast of it can influence the due process of law is open to debate. The vigilantism accompanied the manners in which one attorney threatened a member of the audience with an accusation that he was insulting the Supreme Court if he was going to pose critical questions to the lawyer. The lawyer then went on to boast how his daughter would never do something for which he would have to set her on fire—as he was the custodian of his adult daughter.

As shocking as such revelations appear to be, the truth is the lawyers and judges hail from the same patriarchal society which enables rape culture, the same casteist regions that pervade the entire landscape of the country, and the same corrupt playing fields that separate the commoners from the VIP judges for whom the traffic gets cleared on priority.

Back to the Basics

The same meritocracy, which continues to disadvantage the historically oppressed, finds its greatest manifestation in the country’s judiciary. It is undeniable that the justice system—law enforcement and courts alike—bears great responsibilities, especially during times when the executive and legislative branches have reached the lowest ebb. But it is even all the more important that while judicial activism arms the judges with the unprecedented privileges, they open up to much greater scrutiny.
One of the ways to move forward is to ensure social justice and individual liberty, while at the same time abolishing provisions for seditions and detentions without trials. Constitutional interpretations are necessary, but thanks to amendment provisions, there are greater hopes still. For amendments of course, using the participation of other branches of governance is crucial, so that overreach of any specific unit is contained.

India has multitudes of problems when it comes to issues specifically impacting the women and religious minorities. If we have not been able to adequately safeguard their interests, it is quite possible that we may need new laws in place, employing feminist languages that aim at liberating the oppressed.

For instance, in the past, we might have neglected to consider the USSR Constitution or the idea behind the Soviet of Nationalities or Korenizatsiya. Following Maulana Mohani’s proposal, if we look at 1936 Constitution of the USSR, we shall realise how we could adopt a right to free higher education conducted in the native language, a right to rest and leisure that guarantees a working day to last not more than seven hours. We shall realise how as important it is to provide for a fundamental right in the name of religious worship, it is equally necessary to let people enjoy the freedom to conduct antireligious propaganda. To make sure that citizens are “guaranteed inviolability of the person”. where women are accorded equal rights with men without exploitations, citizens have the “right to maintenance in old age and also in case of sickness or loss of capacity to work. This right is ensured by the extensive development of social insurance of workers and employees at state expense, free medical service…”

Whatever might have been our collective past, the future still shall hold promise if we revisit what we have conventionally considered sacrosanct. We need to improvise upon our own laws, to be more inclusive, to be more sensitive, to be more egalitarian. To do away with capital punishment, to consider marital rape as a crime, to prohibit corporal punishment. To prioritise structural reforms over a penal system. To redefine what constitutes a crime: a petty theft out of hunger owing to failure on part of the State to provide for basic needs, or accumulation of disproportionate private properties no matter how legitimate the means may appear to be.

A justice system’s success does not lie in exceeding the capacity of prison cells, as ours has done. It lies in establishing conditions in such a manner that prison walls will need to be crumbled down. That is the new era we have to work towards, and hope for.